Fair and Just Courts

At an AFL-CIO convention this weekend, Massachusetts Sen. Elizabeth Warren called out the increasingly pro-corporate lean of the U.S. Supreme Court. Politico reports:

On the opening day of the AFL-CIO’s convention, Warren — the highest-profile national Democrat to address the gathering here — warned attendees of a “corporate capture of the federal courts.”

In a speech that voiced a range of widely held frustrations on the left, Warren assailed the court as an instrument of the wealthy that regularly sides with the U.S. Chamber of Commerce. She cited an academic study that called the current Supreme Court’s five conservative-leaning justices among the “top 10 most pro-corporate justices in half a century.”

“You follow this pro-corporate trend to its logical conclusion, and sooner or later you’ll end up with a Supreme Court that functions as a wholly owned subsidiary of Big Business,” Warren said, drawing murmurs from the crowd.

The study that Warren was referring to is a Minnesota Law Review study that found that the five conservative justices currently on the Supreme Court have sided with corporate interests at a greater rate than most justices since World War II. All five were among the ten most corporate-friendly justices in over 50 years. Justice Samuel Alito and Chief Justice John Roberts were the top two.

In June 2013, President Obama nominated three extremely well-qualified people to fill the three vacancies on the DC Circuit Court of Appeals, a court that has been deemed “the second most important in the United States.” As the nominees - appellate attorney Patricia Millet, Georgetown law professor and appellate advocate Cornelia “Nina” Pillard, and D.C. District Court judge and former public defender Robert Wilkins - make their way out of the Senate Judiciary Committee and towards the Senate floor, Senate Republicans are threatening to ramp up their partisan gridlock by blocking votes on any of them.

The far right has accused the president of trying to “pack” the courts just for making nominations to existing vacancies, as the Constitution calls for. Senate Republicans have even introduced a bill to eliminate the three judgeships, just to keep President Obama from filling them.

In anticipation of the fight we expect to see this fall, People For the American Way has drafted an activist toolkit for concerned citizens across the United States who understand the importance of the courts, and who know we must stand up against Republican obstruction. Check it out here:

In an interview with Janet Mefferd Friday, the chief advocate of Oklahoma’s Sharia law ban lashed out at federal judge Vicki Miles LaGrange for her ruling striking down the 2010 amendment. Rex Duncan, a former Republican state representative and now a district attorney, told Mefferd that the judge, who is African American, was upset by the prohibition on any “special treatment for a minority ideology or religion” because of her past support for “preferential treatment for minorities.”

“She just went out of her way to side with the minorities and make up a reason for it,” Duncan charged.

Somewhere in the recesses of her liberal mind she arrived at, and this is just my opinion, she arrived at the disposition, quickly, that she wanted to get and then had to torture the logic to justify her, in my mind, pre-determined opinion. This lady, she’s a smart lady, but when she was a state senator in Oklahoma she was very liberal, she was known for the liberal causes that she authored, many of which established preferential treatment for minorities with quotas set aside for hiring contracts with preferential treatment for minorities. So it didn’t come as a great surprise that a constitutional amendment that in effect tried to close the door on special treatment for a minority ideology or religion would be seen as her as hostile and I think that’s how she saw it, as a threat to the founding principles of our country, and she just went out of her way to side with the minorities and make up a reason for it.

The Weekly Standard has a long piece in its latest print issue defending Senate Republicans’ threat to filibuster President Obama’s three nominees to the Court of Appeals for the District of Columbia Circuit. It’s no surprise that the Standard is backing Republican obstruction, but the extent to which they must dance around the facts in order to do so is remarkable.

The piece, written by Adam J. White, a former clerk of ultra-conservative Reagan nominee and now senior D.C. Circuit judge David Sentelle, gives an extensive history of the D.C. Circuit…but leaves out a few major details.

Here are the highlights of the Weekly Standard’s selective history of the D.C. Circuit.

1. What Caitlin Halligan filibuster?

White incorrectly notes that President Reagan had seven D.C. Circuit nominees confirmed during his two terms in office (he actually had eight nominees confirmed) and correctly notes that President George H. W. Bush had three. But he doesn’t quite explain the reason that only one of President Obama’s nominees has so far been confirmed to the court:

Later that year, the president finally made two nominations for the court—former New York solicitor general Caitlin Halligan and respected Supreme Court litigator Sri Srinivasan—but he made no substantial effort to secure their confirmations before the 2012 election. After his second inauguration, the Senate unanimously confirmed Srinivasan; the White House withdrew Halligan’s nomination, at her own request.

White neglects to mention that President Obama’s first nominee to the D.C. Circuit, Caitlin Halligan, didn’t just “withdraw” from consideration – she was nominated five times when Republicans kept refusing to allow the Senate to vote on her nomination and actually forced the Senate to send the nomination back to the White House. She also faced multiple Republican filibusters based on completely made-up charges in a nomination struggle that lasted two and a half years. The idea that nobody made any effort to get Halligan confirmed is as preposterous as the explanations Republicans seized on to justify prohibiting the Senate from voting on her nomination.

Similarly, those who seize on the court’s rejection of a single EPA rule, in EME Homer City, as evidence that the D.C. Circuit “has morphed into a hotbed of activist judges” (as a blogger for the liberal American Constitution Society put it) lack any sense of perspective. The same D.C. Circuit has affirmed the vast majority of the Obama administration’s greenhouse gas regulations, a regulatory program that far exceeds the cross-state air pollution rule at issue in EME Homer City in terms of cost and scope. Again, whether one agrees or disagrees with the decisions, they offer no plausible basis on which to suggest that the D.C. Circuit is reflexively, ideologically antiregulatory.

Perhaps he should read these words by Bush nominee Janice Rogers Brown, who last year took the opportunity of a routine case about the milk market to unleash a broad invective against the government’s power to regulate commerce, in which she accuses courts that uphold government regulation of putting “property at the mercy of the pillagers”:

America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.
…Civil society, once it grows addicted to redistribution, changes its character and comes to require the state to feed its habit. The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect - a lot more. [internal quotations and citations removed]

And it’s not just words. This skewed interpretation of the Constitution has led the D.C. Circuit’s Republican-nominated judges to issue any number of anti-worker, anti-consumer opinions, including the recent one holding that requiring companies to inform employees of their rights under the law violates the free speech rights of employers.

3. What Bush nominees?

White closes with a repeat of the Republican talking point that there is no need for the vacancies on the D.C. Circuit to be filled, no matter who is nominated to fill them. He repeats the claims of right-wing activist Carrie Severino that “several” anonymous current D.C. Circuit judges have said that the court’s vacancies don’t need to be filled. (It would seem that these are the same anonymous judges that Sen. Chuck Grassley claims to have polled after he had already concluded the seats should be eliminated.)

Furthermore, a According to Carrie Severino in National Review Online, several of Judge Garland’s colleagues anonymously informed the committee that “the Court does not need additional judges” to handle its workload. “If any more judges were added now, there wouldn’t be enough work to go around.”

Although Sen. Grassley trotted out the anonymous quotes during a Senate hearing, he conspicuously refused to include the responses he got to the questionnaire he’d secretly sent to DC Circuit judges in the public record. The thing is, actual, non-anonymous authorities have come out to say that yes, the D.C. Circuit’s seats do need to be filled. Citing the court’s uniquely challenging caseload, former D.C. Circuit judge Patricia Wald wrote an op-ed (under her own name!) calling for the confirmation of both of the then-pending nominees and for the full staffing of the court. “There is cause for extreme concern that Congress is systematically denying the court the human resources it needs to carry out its weighty mandates,” she wrote.

Even Chief Justice John Roberts has explained that because of its unique place in the justice system, the D.C. Circuit’s workload cannot be compared to that of other federal courts.

White goes on to claim that the anonymous claims that no more judges are needed “are confirmed by the federal judiciary system’s official data.” But his numbers aren’t exactly right. He claims that the court now has 17 judges hearing cases – in fact that number is 14: eight active judges and six judges who have taken semi-retired senior status.

The judges’ anecdotes are confirmed by the federal judiciary system’s official data. Since 2001, the court has added four judges (to “replace” four who took senior status). In that same period of time, the court’s workload has remained virtually constant: 1,319 pending cases in March 2001, 1,315 in September 2012. The nation’s courts face many genuine personnel shortages; the federal judiciary formally designates some courts as “judicial emergencies,” a list published on the judiciary website (and linked by the Justice Department’s own website). The D.C. Circuit is nowhere among them; with 17 judges now hearing cases, it has by far the lightest “per capita” appellate caseload in the country.

The points of comparison that White picks in an attempt to illustrate the court’s supposedly consistent caseload are misleading, at best. The fact that the court had 1,319 pending cases in March 2001 and 1,315 in September 2012 is meaningless for the current debate.

Instead, let’s look at the caseload in the spring of 2003 when Republicans supported the confirmation of George W. Bush nominees John Roberts and Miguel Estrada to the 9th and 10th seats. Two years later, Republicans successfully pushed to confirm Janet Rogers Brown and Thomas Griffith to the 10th and 11th seats, when there were 1,313 pending cases. Fast forward to today, when the GOP is claiming that no more than eight judges are needed on the D.C. Circuit, and the court has 1,456 pending cases. That is a whole lot more cases for a whole lot fewer judges to process.

4. What obstruction?

White concludes by saying that there is “no reason for the Senate to accelerate its own review or confirmation” of the three D.C. Circuit nominees:

The D.C. Circuit does not “need” President Obama to appoint more judges. President Obama wants to appoint more judges. As a matter of presidential prerogative, that is a perfectly fine reason to nominate judges—but it is no reason for the Senate to accelerate its own review or confirmation of nominees.

The thing is, nobody’s asking the Senate to confirm these nominees in the dark of night. Each is getting a public hearing and answering pages of written questions from senators. What the Senate GOP is threatening to do is deny these nominees up-or-down votes for reasons having nothing to do with the nominees themselves. White provides no justification for filibusters of these nominees who the president has used his “presidential prerogative” to nominate.

Eagle Forum founder and anti-gay activist Phyllis Schlafly was “extremely offended” by the Supreme Court’s ruling striking down a key part of the Defense of Marriage Act, because of “all the nasty names” she claims the court’s majority called DOMA’s proponents.

Speaking with Steve Deace yesterday, Schlafly said that it was “inappropriate, unprecedented and really nasty” for Justice Anthony Kennedy to find that DOMA’s passage had anything to do with “animus against gays.”

“I feel personally insulted by what Justice Kennedy said,” she added.

Deace: You wrote an interesting reaction to the US Supreme Court, I guess we would call it ‘opinion,’ but it really looked to me, Phyllis, like five justices, and Anthony Kennedy in particular, chose to write what amounts to an anti-Christian polemic disguised as a legal opinion. And it seems like you sort of got the same vibe from what they wrote.

Schlafly: Well, I was extremely offended at all the nasty names he called us. I just think it’s so inappropriate, unprecedented and really nasty for the justice to say that the reason DOMA, the Defense of Marriage Act, was passed, and those who stand up for traditional marriage is that they have animus against gays, they want to deny them equal dignity, that we want to brand them as unworthy, we want to humiliate their children, we have a hateful desire to harm a politically unpopular group. I just think, I feel personally insulted by what Justice Kennedy said. I don’t think that’s true, the idea that anybody who stood up for traditional marriage is guilty of all that hate in his heart is just outrageous.

Later in the interview, the two discussed Hobby Lobby’s suit against the health care law’s mandate that they provide their employees with insurance that includes birth control coverage. Deace claimed that the Obama administration is making “a clear attempt to eradicate the worldview that stands in opposition to statism.”

Schlafly agreed: “Well, I think you’re right, and that’s why I think Obama is definitely trying to make this a totally secular country where you’re not permitted to reference God in anything that anybody else can hear.”

Deace: Well, and I think you look at something like religious freedom, you’ve got the Obama regime trying to tell companies like Hobby Lobby that your freedom of religion, when you walk into corporate headquarters there at Hobby Lobby, you no longer have the freedom of religion. So you have to do what we tell you to do, even if it violates the moral conscience of your religion, the Bill of Rights ends when you walk into your corporate headquarters. What we see going on in the US Military, for example. We’re seeing unprecedented threats to religious liberty. I know this is something you’ve written about as well. And I think this is a clear attempt to eradicate the worldview that stands in opposition to statism.

Schlafly: Well, I think you’re right, and that’s why I think Obama is definitely trying to make this a totally secular country where you’re not permitted to reference God in anything that anybody else can hear.

In a WorldNetDaily column today, legendary anti-feminist Phyllis Schafly joins the far-right attacks on Cornelia “Nina” Pillard, one of President Obama’s three nominees to fill vacancies on the influential Court of Appeals for the D.C. Circuit.

As Slate’s Dahlia Lithwick has ably explained, the far right’s objection to Pillard is what they see as her excessive support for women’s equality – including “radical” ideas like access to birth control and paid family leave.

Obama not only has the help of the ACLU and similar organizations to pursue anti-religion litigation, but he is determined to appoint many like-minded judges to the federal courts. He recently nominated a scary feminist named Nina Pillard to the important D.C. Circuit Court of Appeals.

Her extremist views include the wild allegation that abortion is necessary to help “free women from historically routine conscription into maternity.” She says that those who oppose Obamacare’s contraception-abortion mandate are really reinforcing “broader patterns of discrimination against women as a class of presumptive breeders.”

Obama would surely like to get supremacist judges to carry out his goals to rewrite the meaning of the First Amendment. We hope there are enough Republicans in the Senate to expose Pillard’s paper trail of extremist feminist writings.

It’s worth mentioning that the woman who Schlafly calls a “scary feminist” has a long history of finding common ground across ideological divides. She worked on the same side as both Bush administrations as a litigator on several major constitutional cases. She also runs Georgetown Law School’s respected Supreme Court Institute, which helps lawyers from around the country in preparing for Supreme Court arguments without regard to which side they represent (including attorneys arguing every single case before the Supreme Court this year). She even led the committee whose research was used by the American Bar Association that found ultra-conservative Justice Samuel Alito “well qualified” for his job.

But Schlafly’s definition of “scary feminist” encompasses just about anyone who supports any sort of legal rights for women. In fact, Schlafly has gone to bat against Pillard before, criticizing two of the nominee’s most widely-hailed victories on behalf of women’s equality: winning the Supreme Court case brought by the George H.W. Bush Administration that opened the Virginia Military Institute to women, and working on the same side as George W. Bush administration lawyers to successfully defend the Family and Medical Leave Act in the courts.

Schlafly, of course, railed against both victories. She charged that the Supreme Court’s decision upholding the FMLA “was based on feminist fantasies about a gender-neutral society” and when the Supreme Court unanimously struck down VMI’s discriminatory admissions procedures, she wrote to the school’s alumni:

The massive government lawsuit against VMI wasn't about "ending sex discrimination" or "allowing women to have access to the same educational benefits that men have at VMI." It was a no-holds-barred fight to feminize VMI waged by the radical feminists and their cohorts in the Federal Government.

…

Since feminists successfully got women admitted into the military academies, and got the Clinton Administration to assign women to military combat positions, VMI and the Citadel remained as the most visible fortresses of the concept that men and women are fundamentally different. The feminists hate you just because you exist.

Which is to say that if Republican senators decide to adopt Schlafly’s definition of “scary feminist,” they should know that it includes not only the basic defense of reproductive rights, but also support for laws that allow women to work outside the home while raising children and the belief that public institutions shouldn’t discriminate on the basis of sex.

Now that we’re well into President Obama’s fifth year in office, there are no prizes for guessing what the GOP’s response is to a diverse slate of nominees to the critical DC Circuit Court of Appeals.

Obstruct. Obstruct. Obstruct.

Even before they were nominated, Republican Senators were laying the groundwork to block anyone nominated to the circuit. Now that President Obama has nominated three unquestionably qualified jurists with broad support from across the ideological spectrum…Republican leaders are still intent on denying them simple yes-or-no votes.

We’ve created a simple graphic to share on Facebook to let Republicans know you’re watching how they treat this diverse set of nominees. Click here to share.

Earlier this year, President Obama nominated three brilliant jurists to the DC Circuit Court of Appeals, the court that many people call “the second most important court in the nation.” It probably comes as no surprise that Republicans have already started laying the groundwork to obstruct their confirmation.

Republicans on the Senate Judiciary Committee spent yesterday’s confirmation hearing on D.C. Circuit Court of Appeals nominee Nina Pillard harping on two points: first, that they think the D.C. Circuit doesn’t need its three vacancies filled, and second, that they think Pillard’s arguments as an academic mean she would disregard the law as a judge.

As it happens, when George W. Bush was the one nominating federal judges, the very same senators held the exact opposite view on both of these issues.

As People For the American Way has extensively shown, the argument that the D.C. Circuit doesn’t need judges holds no water – in fact, Bush nominees Thomas Griffith and John Roberts (now Chief Justice) were confirmed to the D.C. Circuit when each active judge’s caseload was significantly lower than it is today.

And Republican attacks on Pillard’s academic writings also directly contradict their previous statements on Bush nominees with academic records. As Pillard noted in her hearing, "Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit."

Just a few years ago, Republican senators agreed. On the nomination of Tenth Circuit judge Michael McConnell, who took a number of far-right stands as an academic, including disagreeing with a Supreme Court decision declaring that a university ban on interracial dating constituted racial discrimination, Utah Sen. Orrin Hatch said, “The diversity of backgrounds and points of view are often the stitches holding together the fabric of our freedoms.”

“Surely, we can’t vote for or against a nominee on whether they agree with us on any number of a host of moral and religious issues, ” Alabama Sen. Jeff Sessions said of Eleventh Circuit nominee William Pryor, a far-right culture warrior who was outspoken in opposition to gay rights, women’s rights and the separation of church and state.

Then-Sen. Jim Demint defended D.C. Circuit Judge Janice Rogers Brown, one of the most outspoken conservative ideologues on the federal bench today, by saying, “A person with strong beliefs and personal convictions should not be barred from being a judge. In fact, I would rather have an honest liberal serve as a judge than one who has been neutered by fear of public opinion.”

And before the Senate confirmed Arkansas District Court Judge J. Leon Holmes, who used Todd Akin’s line about pregnancy from rape before Todd Akin did, Hatch told concerned colleagues, “This man is a very religious man who has made it more than clear that he will abide by the law even when he differs with it.”

These Bush nominees held positions that were clearly far out of the mainstream, yet Senate Republicans demanded and got yes-or-no confirmation votes on them, helping Bush to shift the federal judiciary far to the right.

What some Judiciary Committee Republicans objected to at yesterday’s hearings is what they apparently see as Pillard’s excessive support for women’s equality, both as an attorney and an academic. Pillard won the Supreme Court case opening the Virginia Military Institute to women and worked with Bush administration officials to successfully defend the Family and Medical Leave Act. She has strongly defended reproductive rights and criticized abstinence-only education that sends different messages to boys and girls. It’s this record that her Republican opponents have distorted beyond recognition.

By any measure, Pillard is well within the mainstream, and has made it very clear that she understands that the role of a judge is to apply existing law regardless of one’s personal views. But while Senate Republicans made plenty of excuses for Bush nominees who were far outside the mainstream, they are accusing Pillard of being just too much of a women's rights supporter to fairly apply the law.

Republicans on the Senate Judiciary Committee spent yesterday’s confirmation hearing on D.C. Circuit Court of Appeals nominee Nina Pillard harping on two points: first, that they think the D.C. Circuit doesn’t need its three vacancies filled, and second, that they think Pillard’s arguments as an academic mean she would disregard the law as a judge.

As it happens, when George W. Bush was the one nominating federal judges, the very same senators held the exact opposite view on both of these issues.

As People For the American Way has extensively shown, the argument that the D.C. Circuit doesn’t need judges holds no water – in fact, Bush nominees Thomas Griffith and John Roberts (now Chief Justice) were confirmed to the D.C. Circuit when each active judge’s caseload was significantly lower than it is today.

And Republican attacks on Pillard’s academic writings also directly contradict their previous statements on Bush nominees with academic records. As Pillard noted in her hearing, "Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit."

Just a few years ago, Republican senators agreed. On the nomination of Tenth Circuit judge Michael McConnell, who took a number of far-right stands as an academic, including disagreeing with a Supreme Court decision declaring that a university ban on interracial dating constituted racial discrimination, Utah Sen. Orrin Hatch said, “The diversity of backgrounds and points of view are often the stitches holding together the fabric of our freedoms.”

“Surely, we can’t vote for or against a nominee on whether they agree with us on any number of a host of moral and religious issues, ” Alabama Sen. Jeff Sessions said of Eleventh Circuit nominee William Pryor, a far-right culture warrior who was outspoken in opposition to gay rights, women’s rights and the separation of church and state.

Then-Sen. Jim Demint defended D.C. Circuit Judge Janice Rogers Brown, one of the most outspoken conservative ideologues on the federal bench today, by saying, “A person with strong beliefs and personal convictions should not be barred from being a judge. In fact, I would rather have an honest liberal serve as a judge than one who has been neutered by fear of public opinion.”

And before the Senate confirmed Arkansas District Court Judge J. Leon Holmes, who used Todd Akin’s line about pregnancy from rape before Todd Akin did, Hatch told concerned colleagues, “This man is a very religious man who has made it more than clear that he will abide by the law even when he differs with it.”

These Bush nominees held positions that were clearly far out of the mainstream, yet Senate Republicans demanded and got yes-or-no confirmation votes on them, helping Bush to shift the federal judiciary far to the right.

What some Judiciary Committee Republicans objected to at yesterday’s hearings is what they apparently see as Pillard’s excessive support for women’s equality, both as an attorney and an academic. Pillard won the Supreme Court case opening the Virginia Military Institute to women and worked with Bush administration officials to successfully defend the Family and Medical Leave Act. She has strongly defended reproductive rights and criticized abstinence-only education that sends different messages to boys and girls. It’s this record that her Republican opponents have distorted beyond recognition.

By any measure, Pillard is well within the mainstream, and has made it very clear that she understands that the role of a judge is to apply existing law regardless of one’s personal views. But while Senate Republicans made plenty of excuses for Bush nominees who were far outside the mainstream, they are accusing Pillard of being just too much of a women's rights supporter to fairly apply the law.

Today, the Senate Judiciary Committee will hold a hearing on the nomination of Cornelia “Nina” T.L. Pillard to the influential Court of Appeals for the D.C. Circuit. Pillard is one of President Obama's three nominees to fill vacancies on the court, which is currently operating with nearly one-third of its seats empty.

Pillard is a fair-minded, nationally recognized law professor and experienced appellate lawyer with an extraordinary record of service. She has won historic Supreme Court victories: she opened one of the last male-only public colleges to women, and protected the Family and Medical Leave Act. She has served two tours as a high-level government lawyer and is currently a distinguished and beloved professor at Georgetown University Law Center. Her expertise in appellate litigation led to her appointment as a co-director of Georgetown’s Supreme Court Institute, which assists lawyers from around the country in preparing for Supreme Court arguments, without regard to which side they represent. Her record demonstrates her superb character, judgment, and fundamental commitment to upholding the principles of our Constitution and laws.

Right-wing bloggers are already making nasty and untrue attacks on Professor Pillard, but here are the facts:

The National Review Online cited unnamed sources in a blog calling Professor Pillard a “complete ideologue.” In reality, Professor Pillard is a fair-minded, highly accomplished litigator with broad experience and an outstanding reputation for public service. She has litigated major constitutional cases brought or defended by Republican Administrations, and Supreme Court justices appointed by Republican presidents have often written the majority opinions agreeing with Professor Pillard’s legal arguments. And prominent officials in Republican-appointed officials are supporting her nomination.

FACT: Because of Pillard’s unbiased approach to the law, which has earned her the respect of her colleagues, she was asked to chair an American Bar Association Reading Committee that evaluated Judge Samuel Alito’s qualifications to serve on the Supreme Court. Her committee’s evaluation led to the ABA rating Alito “well qualified."

The Reading Committee reviewed all of the legal writings of then-Judge Samuel Alito for purposes of evaluating his nomination to the Supreme Court. Armed with the review by Professor Pillard’s committee, the Standing Committee unanimously gave Judge Alito its highest rating of “Well Qualified.”

FACT: Pillard serves on the Executive Committee of the Board of Directors of the American Arbitration Association, the world’s largest alternative dispute resolution provider.

At the American Arbitration Association, Pillard has worked with corporate general counsels and business leaders to advance the Association’s private arbitration services and mission. Arbitration is a process favored by many businesses for resolving disputes without the cost and delay of litigation.

FACT: Pillard has a long track record of fair and unbiased work, including litigating major constitutional cases brought or defended by Republican Administrations. And Supreme Court justices appointed by Republican presidents have often written the majority opinions agreeing with her legal arguments.

Over the past 15 years, Professor Pillard has distinguished herself as a professor at Georgetown University Law Center, where she both teaches and serves as a Co-Director of the Supreme Court Institute, preparing lawyers for argument on a pro bono, first-come basis to all lawyers who seek assistance. Over the past term, the Supreme Court Institute prepared lawyers on one or both sides of every case heard by the Supreme Court.

Professor Pillard argued the Supreme Court case Nevada Department of Human Resources v. Hibbs alongside DOJ officials in the George W. Bush administration. Together, their defense of the Family and Medical Leave Act successfully vindicated a state employee’s right to take unpaid leave to care for his ill wife. Chief Justice Rehnquist wrote the majority opinion, siding with Professor Pillard’s argument.

In United States v. Virginia, a case filed by the George H.W. Bush administration, Professor Pillard wrote the briefs that persuaded the Supreme Court to open the Virginia Military Institute to women, ending one of the last state college male-only admissions policies in the country.

In Ornelas v. United States, Professor Pillard argued that reasonable suspicion and probable cause – the defining standards for police searches and seizures – require independent review in appellate courts to clarify and control the legal rules, unify precedent, and afford law enforcement clear guidance as to when searches are appropriate. In an opinion written by Chief Justice Rehnquist, the Supreme Court agreed with Professor Pillard’s legal arguments.

In Behrens v. Pelletier, Professor Pillard won a critical victory ensuring that local, state, and federal government officials can defend themselves adequately when sued. In an opinion by Justice Scalia, the Supreme Court agreed with the position articulated by Professor Pillard.

FACT: President George W. Bush’s Assistant Attorney General Viet Dinh signed a letter of support for Professor Pillard citing her unbiased approach to the law.

Professor Pillard “is exceptionally bright, a patient and unbiased listener, and a lawyer of great judgment and unquestioned integrity. We certainly do not agree on the merits of every issue, but Nina has always been fair, reasonable, and sensible in her judgments. She approaches faculty hiring, teaching and curriculum, and matters of faculty governance on their merits, without any ideological agenda--at times even against the tide of academic popularity to defend and respect different views and different types of people.

The Family Research Council has attacked Professor Pillard, claiming she has radical liberal ideas on abortion, motherhood and abstinence only education.

The FRC wrongly attributed a quote to Professor Pillard which was actually a quote belonging to former Chief Justice Rehnquist.

FRC’s Email stated: “A mother of two, Nina wrote a 2011 paper, "Against the New Maternalism," which argues that by celebrating motherhood, society is creating a "self-fulfilling cycle of discrimination."

In Professor Pillard’s Article, she is quoting the majority opinion in the Hibbs case, written by then-Chief Justice William Rehnquist: “Providing men with family leave, the Hibbs court reasoned, would help to change underlying gendered patterns of family care and thereby help to counteract “a self-fulfilling cycle of discrimination” – a cycle that “fostered employers’ stereotypical views about women’s [lack of] commitment to work and their [lesser] value as employees,” as well as “parallel stereotypes” of men’s overriding workplace commitment that routinely obstruct men’s equal access to family benefits that could encourage them to spend more time parenting. The radical implication of Hibbs is that we cannot end sex discrimination outside the home without changing our beliefs about women’s and men’s differential attachments to family care within it, and we cannot change those beliefs without actually shifting the allocation of care work within the family.” (Pillard, Against the New Maternalism, p. 231)

Additional reference to the original Rehnquist Quote: “But in a broadly worded opinion, Rehnquist said Tuesday that Congress and the courts could use stronger standards to fight sex discrimination. He detailed the long history of discriminatory leave policies and the rationale for the family leave law, which guarantees employees up to 12 weeks of unpaid leave to care for family members… Before the law, he wrote, leave policies were grounded in "stereotypes about women's domestic roles" and "parallel stereotypes presuming a lack of domestic responsibilities for men." Those "mutually reinforcing stereotypes," Rehnquist noted, created a "self- fulfilling cycle of discrimination" that forced women to maintain the role of primary family caregiver.” (Court bolsters family leave, Chicago Tribune, 05/03)

The Family Research Council wrongly accuses Professor Pillard of broadly claiming that abstinence only education is unconstitutional, saying, “Pillard is so fiercely opposed to abstinence education that she has said publicly she would declare it unconstitutional.”

Nina Pillard: “I do not here take a position on the abstinence message itself, beyond arguing that it must not be embedded with sexual stereotypes or discriminatorily applied to women and not men.” (Pillard, Our Other Reproductive Choices, p. 962)

Professor Pillard does not oppose abstinence-only education. Rather, she has written that sex education, whether it advocates abstinence or not, should treat boys and girls equally and avoid sex-role stereotypes, in the interest of promoting equal responsibility on the part of both boys and girls.

The FRC claimed that Professor Pillard has ‘extreme pro-abortion’ views when in fact Professor Pillard’s academic writing on abortion seeks ways to bridge the gap between abortion rights advocates and opponents by finding common ground for ways to reduce reliance on abortion.

“All of these visions of sex equality and reproductive rights are ones that can be shared by people whether they view themselves as pro-life or pro-choice. If society were willing to recognize the demands of equality in these three areas, there might well be less need for abortion. Filling out the reproductive rights agenda with measures that make abortion less necessary is one way to seek progress, notwithstanding legal and cultural conflict about abortion itself.” (Pillard, Our Other Reproductive Choices, p. 990)

Professor Pillard’s academic writings show her openness to viewpoints raised by abortion rights opponents: Professor Pillard consulted respected anti-abortion advocate Helen Alvaré in writing her article ‘Other Reproductive Choices’ to ensure her work considered all sides of the public debate on women’s reproductive health. In fact, Professor Alvaré is listed in the article’s acknowledgements.

“Feminists for Life (FFL), a nonprofit organization declaring itself in favor of equality for women and against abortion, makes some claims that resonate with those of some pro-choice feminists, and which should be common ground in the reproductive rights battles.” (Pillard, Our Other Reproductive Choices, p. 981)